Opinion
Crim. Action No. 17-43 (JDB)
2020-11-24
UNITED STATES of America v. Rahman SHABAZZ, Defendant.
MEMORANDUM OPINION & ORDER
Defendant Rahman Shabazz moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A) in light of his desire to care for his elderly mother and the COVID-19 pandemic. He asks the Court to reduce his sentence and order his immediate release, or in the alternative, to allow him to serve the remainder of his sentence on home confinement. See Mot. Pursuant to 18 U.S.C. § 3582(c) for Order Reducing Sentence and Granting Immediate Release or, in the Alternative, Modifying J. to Allow Remainder of Sentence to be Served on Home Confinement ("Release Mot.") [ECF No. 17] at 1. Shabazz is fifty-four years old and currently incarcerated at Yazoo City Federal Correctional Institution ("FCI Yazoo"), a low-security facility in Yazoo City, Mississippi, where he has served about thirty-six months of a sixty-seven-month sentence for racketeering and conspiracy to distribute heroin and cocaine. See id. at 1–2; Presentence Investigation Report ("PSIR") [ECF No. 8] at 1, 4. His projected release date is September 6, 2022, but he now argues that "the combination of [his] filial duty to care for his elderly mother and the COVID-19 pandemic" constitute "extraordinary and compelling reasons" that warrant his immediate release. Release Mot. at 1–2.
Shabazz previously filed a letter motion for compassionate release on May 29, 2020. See Letter Mot. for Compassionate Release [ECF No. 12]. Because he did not demonstrate that he had exhausted administrative remedies, as required by § 3582(c)(1)(A), the Court denied that motion without prejudice. See Order, June 2, 2020 [ECF No. 13] at 2.
The government opposes the motion, arguing that (1) Shabazz has not exhausted administrative remedies for his COVID-19 claim, (2) his desire to care for his mother does not qualify as an "extraordinary and compelling reason" for release under § 3582(c), (3) Shabazz remains a danger to community, and (4) the Court lacks authority to order home confinement (except by reducing Shabazz's sentence). See Gov't's Opp'n to Def.’s Mot. for Compassionate Release or Home Confinement ("Gov't's Opp'n") [ECF No. 22] at 1–2. For the reasons explained below, the Court agrees with the government and will deny Shabazz's motion for release.
Under the First Step Act of 2018, a court may, upon motion of the Bureau of Prisons ("BOP") or a defendant, reduce a defendant's term of imprisonment if, "after considering the factors set forth in [ 18 U.S.C. § 3553(a) ] to the extent that they are applicable," the court concludes that "extraordinary and compelling reasons warrant such a reduction" and that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A)(i) ; see also U.S.S.G. § 1B1.13 (setting forth the Commission's policy statement, which requires—among other things—that the defendant's release not pose "a danger to the safety of any other person or to the community"). "As the moving party, the defendant bears the burden of establishing that he is eligible for a sentence reduction under § 3582(c)(1)(A)." United States v. Demirtas, 2020 WL 3489475, at *1 (D.D.C. June 25, 2020) (Moss, J.). And a court may consider a defendant's motion for such a reduction only "after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring [such] a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A).
To start, the parties agree that Shabazz has satisfied § 3582(c)(1) ’s exhaustion requirement for his claim that he should be released to care for his mother. See Release Mot. at 2–3; Gov't's Opp'n at 10–11. Indeed, on April 23, 2020, Shabazz requested release through FCI Yazoo's Administrative Remedy Program on the grounds that he wanted to care for his mother, and more than thirty days have since elapsed. See Release Mot. Ex. A [ECF No. 17-1]. But the government argues that Shabazz did not mention the COVID-19 pandemic in his administrative request, and thus his claim that he should be released in light of COVID-19 should be dismissed. See Gov't's Opp'n at 11. The Court agrees. The regulations implementing § 3582(c)(1)(A) clearly state that an inmate's request (which forms the basis of the later release motion) "shall at a minimum contain," among other things, "[t]he extraordinary or compelling circumstances that the inmate believes warrant consideration." 28 C.F.R. § 571.61(a). As in the past, this Court will "side with the weight of precedent, which requires ‘the inmate to present the same factual basis for the compassionate-release request to the warden.’ " United States v. Douglas, 2020 WL 5816244, at *2 (D.D.C. Sept. 30, 2020) (Bates, J.) (quoting United States v. Mogavero, 2020 WL 1853754, at *2 (D. Nev. Apr. 13, 2020) ). To do otherwise would let inmates present one reason for relief to BOP and another to the Court, denying BOP the chance to consider the request. Id. Thus, to the extent that Shabazz's motion relies on COVID-19, the Court will deny that claim without prejudice.
Even if Shabazz had exhausted his COVID-19 claim, he has not demonstrated that the threat caused by COVID-19 constitutes an extraordinary and compelling reason for his release. Shabazz has not alleged any medical conditions that increase his susceptibility to COVID-19. Rather, he argues that he should be released to limit the spread of COVID-19 in prisons by reducing the prison population. See Release Mot. at 13–14. "But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release." United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020).
The Court now turns to the merits of Shabazz's argument that he should be released to care for his eighty-year old mother, who lives alone in New York, and suffers from slowly progressing dementia, hypertension, and other health problems that make it "impossible for her to continue living by herself." See Letter from Dr. Donald C. Wallerson, Release Mot. Ex. B [ECF No. 17-2]. Shabazz claims he is the "only resource available" to support her full-time because his sister lives in North Carolina and no other family or friends can assist. See Release Mot. at 4; Letter from Deborah Rodgers, Release Mot. Ex. C [ECF No. 17-3]. Although the Court is sympathetic to Shabazz's desire to care for his mother, this does not qualify as an "extraordinary and compelling reason" for release.
Commentary to the Sentencing Commission's policy statement describes four "circumstances" that constitute "extraordinary and compelling reasons" for a sentence reduction under § 3582(c), including the following "Family Circumstances": (1) "[t]he death or incapacitation of the caregiver of the defendant's minor child or minor children" or (2) "[t]he incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner." U.S.S.G. § 1B1.13 cmt. n.1. These circumstances are "strictly circumscribed" and "do not encompass providing care to elderly parents." United States v. Goldberg, 2020 WL 1853298, at *4 (D.D.C. Apr. 13, 2020) (Howell, C.J.). Thus, "[w]hile certainly admirable, a desire to help care for one's elderly parents does not qualify as an ‘extraordinary and compelling reason’ for release under U.S.S.G. § 1B1.13, nor, therefore, under 18 U.S.C. § 3582(c)(1)(A)(i)." Id. To be sure, the four listed circumstances also include "Other Reasons"—"extraordinary and compelling reason[s] other than, or in combination with" the elucidated reasons (medical condition, age, and family circumstances). U.S.S.G. § 1B1.13 cmt. n.1(D). But these other reasons must be "determined by the Director of the Bureau of Prisons." Moreover, the fact that the policy statement does address family circumstances yet omits any mention of elderly or sick parents suggests that care for a parent is not covered.
Shabazz argues that because U.S.S.G. § 1B1.13 has not been modified since the passage of the First Step Act, it applies only to compassionate release motions brought by BOP and there is no applicable policy statement for release motions (like this one) brought directly by a defendant. See Release Mot. at 8–11; Def.’s Notice of Suppl. Authority [ECF No. 19] at 1 (citing United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020) ). Thus, Shabazz contends, "in the absence of an applicable policy statement, Guideline 1B1.13 ‘cannot constrain district courts’ discretion to consider whether any reasons are extraordinary or compelling’ and therefore warrant compassionate release." Def.’s Notice of Suppl. Authority at 1 (quoting Brooker, 976 F.3d at 236 ). Judges in this District have split on whether the fact that § 3582(c) requires that any sentence reduction be "consistent with applicable policy statements issued by the Sentencing Commission" means that courts are limited to the reasons described in U.S.S.G. § 1B1.13, or whether courts have discretion to find that other reasons are extraordinary and compelling, too. Compare Goldberg, 2020 WL 1853298, at *4 ("[G]iven the plain text of § 3582(c)(1)(A), which requires a finding that any sentence reduction is ‘consistent with applicable policy statements issued by the Sentencing Commission,’ the limitations in U.S.S.G. § 1B1.13 apply and are binding.") with United States v. Price, 496 F.Supp.3d 83, 86–87 (D.D.C. Oct. 6, 2020) (Huvelle, J.) ("[T]his Court finds the many opinions that endorse an expansive reading of a sentencing court's power, given the changes instituted by the First Step Act and the fact that the policy statement has not been amended since its enactment, to be more persuasive.").
This Court need not decide the issue because even if courts are free to consider any reason that a defendant raises for compassionate release, Shabazz has failed to establish that his need to care for his mother is extraordinary and compelling. Most courts to consider similar motions have denied them. After all, "[m]any, if not all inmates, have aging and sick parents. Such circumstance is not extraordinary." United States v. Ingram, 2019 WL 3162305, at *2 (S.D. Ohio July 16, 2019) (denying compassionate release to care for ill mother); see also, e.g., United States v. Dotson, 2020 WL 6294921, at *5 (E.D. Tenn. Oct. 27, 2020) (collecting cases); United States v. Brown, 2020 WL 3440941, at *3 (S.D. Miss. June 23, 2020) ("Several cases throughout the country have found that the need to care for elderly parents is not an ‘extraordinary’ circumstance under the First Step Act."). To be sure, some courts have granted such motions, but only in extreme circumstances. See United States v. Bucci, 409 F. Supp. 3d 1, 2 (D. Mass. 2019) ("Mr. Bucci's role as the only potential caregiver for his ailing mother is an ‘extraordinary and compelling reason’ for compassionate release."); United States v. Walker, 2019 WL 5268752, at *3 (N.D. Ohio Oct. 17, 2019) (granting compassionate release where inmate's mother had leukemia requiring expensive treatment and he had "an unusual and lucrative job opportunity that would allow him to assist with his mother's medical costs").
Shabazz argues that his situation qualifies as extraordinary because he "is the only person available to care for his mother." Release Mot. at 12. However, Shabazz has not established that there is no tenable alternative. During the three years that Shabazz has been incarcerated, his sister and others have aided his mother, and there is no evidence that she has been neglected. See id. at 4. Although Shabazz's sister has difficulty traveling between her home in North Carolina and her mother's home in New York, see Letter from Deborah Rodgers, Shabazz has presented no evidence that these visits, though challenging, cannot be made, or that his mother could not move closer to her daughter. Nor has Shabazz demonstrated that his mother is ineligible for home healthcare assistance—he merely says that she was not eligible in 2017, before she had dementia and when Shabazz's father was still alive. See Release Mot. at 4; PSIR at 27.
Even if Shabazz had demonstrated "extraordinary and compelling reasons" for his release, this Court may reduce his term of imprisonment only if doing so is consistent with applicable sentencing policy and the balance of the factors under § 3553(a) favor release. See United States v. Ayers, 2020 WL 2838610, at *2 (D.D.C. June 1, 2020) (Bates, J.); see also 18 U.S.C. § 3582(c)(1)(A)(i) ; USSG § 1B1.13(2) (requiring that defendant not pose "a danger to the safety of any other person or to the community"). But Shabazz's 67-month sentence remains appropriate and not greater than necessary to comply with the purposes of sentencing.
Shabazz pled guilty to racketeering in violation of 18 U.S.C. § 1962(d), and in case 1:16-cr-00005-JDB to conspiring to distribute and possess with intent to distribute 100 grams or more of heroin and 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i) and (ii), and 846. See Plea Agreement [ECF No. 5] at ¶ 1. Shabazz's racketeering conduct involved delivering suboxone to a correctional officer for redistribution in the correctional institution from June 2015 to at least August 2015. PSIR at ¶¶ 35–39. His narcotics conspiracy charge involved facilitating the distribution of heroin and cocaine from New York to the Washington, D.C. area from July 2015 to January 2016. Id. at ¶¶ 29–34. He has two prior felony narcotics convictions—a 2004 conviction for distribution of a controlled substance and a 2006 conviction for possession with the intent to distribute a controlled substance and distribution of a controlled substance—along with convictions for illegal possession of a vehicle (1994), false statement to firearms dealer (1992), criminal possession of a weapon (1991), and attempted unauthorized use of a vehicle (1990). Id. at 19–26. The parties agreed that a sentence of 63 to 78 months of imprisonment followed by four years of supervised release would be appropriate. Plea Agreement at ¶ 4. The Presentence Investigation Report noted that Shabazz's mother had various ailments and said she relied on Shabazz "210%." PSIR at 27. Nevertheless, this Court sentenced Shabazz to 67 months of imprisonment followed by four years of supervised release in 1:16-cr-00005-JDB, to run concurrently to a sentence of 67 months’ imprisonment followed by three years of supervised release in this case. Judgment [ECF No. 10] at 2.
Shabazz suggests that his release is nonetheless warranted because he has never been convicted of a violent crime, he "has had no violent disciplinary issues while imprisoned," and he has "maintained perfect compliance with all restrictions imposed by this Court pending and following his plea and sentencing." Release Mot. at 15. But these contentions do not create sufficient reason to revisit the Court's original sentencing determination. First, the Court is not persuaded that Shabazz presents no danger to the community merely because his convictions did not involve allegations of violence. The danger posed to the community by drug offenses has been well-established. See, e.g., United States v. Zaragoza, 2008 WL 686825, at *3 (N.D. Cal. Mar. 11, 2008) ("In assessing danger, physical violence is not the only form of danger contemplated by the statute. Danger to the community can be in the form of continued narcotics activity."); see also United States v. Soto, 2020 WL 5821966, at *5 (E.D. Tex. Sept. 29, 2020) (denying compassionate release to defendant who posed safety concerns given her role in supplying coconspirators with methamphetamine and wiring drug proceeds in an international drug trafficking conspiracy); United States v. Sandoval, 2020 WL 3077152, at *6 (W.D. Wash. June 10, 2020) (denying a twenty-four-month reduction of defendant's 120-month sentence because, despite his serious health conditions, defendant had led a drug trafficking conspiracy prior to his incarceration and still posed a danger to community). Here, Shabazz has a long history of drug trafficking and serious felonies, including firearms offenses.
Moreover, Shabazz has not had a perfect track record while imprisoned. During his current period of incarceration, Shabazz received serious punishment for possessing a "hazardous tool," Release Mot. Ex. D [ECF No. 17-4], which disqualified him from being considered for home confinement by BOP, Gov't's Opp'n at 19 n.3. While the disciplinary record does not specify the hazardous tool, Shabazz claims it was a cell phone. See Release Mot. at 5 n.5. Further, although Shabazz appears to have complied with his conditions of release immediately before he was incarcerated in this case, his longer-term history includes persistent recidivism. In addition to the criminal history already detailed, his probation for his 2004 Maryland drug trafficking conviction was revoked and he received an additional 8.5 years of incarceration. PSIR at 21. One short period of compliance is not sufficient to overcome this history.
Finally, this Court lacks the authority to release Shabazz to home confinement. Placement of a prisoner is the BOP's decision, and "a designation of a place of imprisonment ... is not reviewable by any court." 18 U.S.C. § 3621(b). Under 18 U.S.C. § 3624(c)(2), as amended by the First Step Act, only BOP—and not this Court—has the authority to place prisoners into home confinement. Although the CARES Act extended the authorized term of home confinement under this provision, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281 (to be codified at 18 U.S.C. § 3621 note), "the law did not grant to courts the authority to determine whether a prisoner should be placed on home confinement." United States v. Orji, 486 F.Supp.3d 398, 403 (D.D.C. Aug. 31, 2020) ; see also, e.g., United States v. McCann, 2020 WL 1901089, at *3 (E.D. Ky. Apr. 17, 2020) ("While the CARES Act gives the BOP broad discretion to expand the use of home confinement during the COVID-19 pandemic, the Court has no authority under [§ 12003(b)(2) of the CARES Act] to order that a prisoner be placed on home confinement." (citation omitted)). Of course, the Court could, as Shabazz suggests, "reduc[e] his sentence to time served and modify[ ] his judgment to add the unserved portion of his original sentence to his term of supervised release so that it can be served on home confinement." See Release Mot. at 17. But this would still be a sentence reduction, and so would require the Court to make the requisite findings under § 3582(c). Thus, because the Court concludes that Shabazz is not eligible for a sentence reduction under § 3582(c), the Court will also deny Shabazz's request for home confinement.
In sum, the Court cannot conclude that Shabazz has exhausted his COVID-19 claim and denies that claim without prejudice. Nor can the Court conclude that he has established "extraordinary and compelling reasons" for a sentence reduction under § 3582(c)(1)(A) or that such reduction is consistent with applicable sentencing policy. As a result, the Court must deny his motion.
* * *
For the foregoing reasons, it is hereby ORDERED that [17] Shabazz's motion for compassionate release is DENIED .